Bhatta (Migration)

[2019] AATA 6086

Bhatta (Migration) [2019] AATA 6086 (9 October 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Shankar Bhatta

CASE NUMBER:  1916094

DIBP REFERENCE(S):  BCC2019/1271810

MEMBER:Gabrielle Cullen

DATE:9 October 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal does not have jurisdiction in this matter.

Statement made on 09 October 2019 at 11:09am

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – application for review of refusal not made within required time – notification by email – agent informed applicant five days before the end of the required time – applicant sick at the time – no jurisdiction

LEGISLATION

Migration Act 1958 (Cth), ss 65, 66(2)(d)(ii), 347(1)(b), 494C(5)

Migration Regulations 1994 (Cth), r 4.10

CASES

Ali v MHA [2019] FCA 1102

DFQ17 v MIBP [2019] FCAFC 64

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision of a delegate of the Minister for Immigration on 28 May 2019 to refuse to grant a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (the Act). The review application was lodged with the Tribunal on 20 June 2019. For the following reasons, the Tribunal has found that it has no jurisdiction to review the decision.

2. Pursuant to s.347(1)(b) of the Act and r.4.10 of the Migration Regulations 1994 (the Regulations) an application for review of this decision had to be made within 21 days after the applicant was notified of the decision in accordance with the statutory requirements.

3. The material before the Tribunal indicates that the applicant was notified of the decision dated 28 May 2019 and it was dispatched by email on the same day. The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements.

4. On 16 September 2019 the Tribunal wrote to the applicant a letter to the email address outlined for correspondence in the applicant’s application for review form, advising that the applicant lodged his review application on 20 June 2019 and that the last day for lodging the application for review was 18 June 2019. The letter indicated that the application appears to be out of time but invited the applicant to make comments as to whether a valid application has been made. The applicant was requested to respond by 23 September 2019.

5. The applicant responded providing a COE indicating he is enrolled in a General English course from 4 March 2019 to 19 July 2020, letter from Dr Verma indicating the applicant is unfit for work and study from 20 June 2019 to 21 June 2019 and evidence he was prescribed Lomatil.

6. The applicant responded stating that the reason his application is late is due to his previous migration agent who was handling his case. He claims he was only informed of the decision of the Department on 12 June 2019 and that only gave him 5 days to prepare the application. He claims he was also very unwell and had difficulty accepting the refusal by the Department. He claims he paid the agent the Tribunal fees, gave him a statement and all the required documents and the agent said not to worry as it was within the timeframe. He repeats that during the period he was also very sick. He blames his unprofessional agent and then outlines why he wishes to study in Australia. He claims he has paid his tuition fees and is a genuine student. He refers to the stress this is causing him. 

7. In a separate letter he outlines why he is a genuine student and meets the genuine temporary entrant criteria.

8. The Tribunal has considered the applicant’s response; however it finds that the applicant is taken to have been notified of the decision on 28 May 2019. Therefore the prescribed period to apply for review ended on 18 June 2019. The Tribunal notes 18 June 2019 did not fall on a public holiday, Saturday or Sunday.

9. The Tribunal has examined the Department’s notification in light of recent court judgements about the clarity of the notices sent to applicants.  The Tribunal notes that under the heading Review Rights it states that an application for merits review of this decision must be given to the AAT within 21 calendar days after the day on which you are taken to have received this letter.  On a different page under the heading Receiving this Letter it states that “as this letter was sent to you by email, you are taken to have received it at the end of the day it was transmitted”.

10. On 18 April 2019, the Full Federal Court handed down a judgment, DFQ17 v MIBP [2019] FCAFC 64, which found that a departmental notification letter for a Part 7 (Protection) reviewable decision sent by post did not comply with the requirement to state the time in which the application for review may be made (as required by s.66(2)(d)(ii)). The Court held that the information about the time period in the notification was obscure and incomprehensible. This was because the information to determine the time period was in three places in the notification letter, requiring the applicant to note the date of the notification letter, the prescribed period to apply for review (i.e. 28 calendar days, commencing on the day of notification) and the date on which the applicant was taken to have received the notification letter (i.e. 7 working days after the date of the letter) and then calculate the relevant date from the date the applicant was taken to have received the letter. The consequence of this finding was that the time in which the applicant could apply for review had not started to run, and that the Tribunal erred in finding that the review application was lodged out of time and that it did not have jurisdiction.

11. On 12 July 2019, the Federal Court distinguished DFQ17 in Ali v MHA [2019] FCA 1102 and found that a notification for a Part 5 (Migration) reviewable decision which was sent by email and included information to determine the time period to lodge a review application in three places in the departmental notification complied with s.66(2)(d)(ii) and was valid. The Court found that the notification contained sufficient information to determine the time to lodge the review application and that none of the complexities in DFQ17 were present. Email notifications are taken to be received at the end of the day the notification is transmitted (s.494C(5)) whereas postal notifications are taken to be received 7 working days after the date of the document (s.494C(4)(a)).

12. The Tribunal has considered the applicant’s submissions and the relevant court judgements summarised above and finds the circumstances in this case to be relatively indistinguishable from the judgement in Ali v MHA [2019] FCA 1102. On this basis, the Tribunal is satisfied that the Department’s notification is valid.

13. As the application for review was not received by the Tribunal until 20 June 2019, it follows that the application for review was not made in accordance with the relevant legislation and the Tribunal has no jurisdiction in this matter.

    DECISION

14. The Tribunal does not have jurisdiction in this matter.

    Gabrielle Cullen
    Member